Stevens v. North Pennsylvania Coal Co. , 35 Pa. 265 ( 1860 )

The opinion of the court was delivered by

Lowrie, C. J.

That two nihils are good on writs of scire facias on a mortgage, one made returnable to an intermediate return day of one term, and the other to the first day of the next term, appears by the case of Magaw v. Stevenson, 1 Grant’s Gases 405. But this is unimportant as against the title of the terre tenant, for he, as was admitted on the argument, appeared to the action, and he was the proper party to appear and defend, the action being in rem, against the land. By selling the land, the mortgagor became a mere nominal party. The terre tenant, by his appearance, became the true defendant, and he ought to have filed an affidavit of defence, if he could. As he did not, we presume he could not, and he must submit to the judgment.

After the appearance of the terre tenant, the only use of the nihils seems to be to reach the title of the mortgagor, and to save the necessity of hereafter going out of the record to show that he had fully parted with his title to the person appearing as terre tenant, before the case proceeded to judgment. The two nihils are equivalent to service on the mortgagor, and the plaintiff was entitled to judgment, as against any title of his, for want of an appearance. The judgment actually entered is general, though a special reason is assigned for it; and it is good against the whole interest mortgaged, if any good cause appear for its entry. It is good against the mortgagor’s interest for not appearing, and against the terre tenant’s, for not taking defence in the proper form, when he did appear.

Judgment affirmed.